He has been posing five questions daily since Tuesday. None has been answered.
Speaking at a press conference at the DAP headquarters here, Santiago first asked why the Malaysian government would sign an agreement that could undermine national sovereignty as well as the policy-making space necessary for it to manage the affairs of the nation.
He noted that the Chief justice of Australia’s Supreme Court had labelled the Investor-State Dispute Settlement (ISDS) as a system which cuts into the democratic power of Australian courts after the Philip Morris tobacco company “dragged” the Australian government to a private arbitration tribunal.
“The ISDS allows for a foreign investor to sue governments in a tribunal if it deems a certain country is interfering with its profit margin,” said Santiago. “This essentially undermines democracy as it gives tycoons more power than those who have been elected by the people.”
Santiago’s second question referred to the Intellectual Property Rights and E-Commerce chapters of the TPPA, where Internet service providers (ISPs) are given powers to unilaterally remove any file – image, video or document – that Malaysians upload.
He said the personal account of any particular user as well as his access to the Internet could be removed in the event of a complaint of a breach of copyright.
However, neither the complainant nor the ISP would need to prove that an actual breach had taken place, he added.
“Why is the Malaysian government agreeing to a trade pact that potentially violates the rule of law that individuals should be given the right to a free trial? Would the government consider doing a human rights impact assessment on the TPPA?”
His third question had to do with whether the Malaysian government had fully considered the impact of the Most Favoured Nation (MFN) clause in the Investment chapter of the TPPA.
The clause requires foreign investors to be treated no less favourably in like circumstances than investors from third countries. According to Santiago, it gives foreign corporations from TPP states the rights accorded to investors under any other trade deal that Malaysia has signed.
“So no matter how carefully the provisions in the TPPA are drafted and no matter what exceptions Malaysia has won, a party to the TPPA is in fact not confined to the TPPA but can choose the treaty that has the most favourable provisions for it. So if Company A can’t sue you under the TPPA, then it can still sue you under any of the many free trade agreements that Malaysia has signed.”
The fourth question was whether the Malaysian government was aware that under the US Bipartisan Congressional Trade Priorities and Accountability Act of 2015, the US President would be legally required to certify other TPPA countries’ compliance with the agreement.
“This means that the US must be satisfied with the laws, regulations and amendments Malaysia enacts to implement the TPPA. It opens the door to interference with our sovereign law-making processes. I asked the Minister of International Trade and Industry, Mustapa Mohamed, whether Malaysia was accorded the same rights to overlook US laws, and he said no.”
Santiago’s last question was whether the Malaysian government had assessed the implications of the TPPA on its ability to meet its obligations under the Paris Agreement on climate change, in particular, the Intended Nationally Determined Contribution (INDC).
“The right of foreign corporations to challenge any changes – including environmental measures, policies and regulations – that might negatively affect their profits is strongly entrenched in the Investment chapter and ISDS provisions of the TPPA,” he said. “In other words, the power of corporations to use ISDS could strongly undermine our INDC if corporations decide to fight the necessary policy changes the government has made in favour of addressing climate change.”
Santiago said he was “eagerly” awaiting Mustapa’s response to the 15 questions he had posed.
“I hope he will be able to get back to me before Monday,” he added. “That’s why I think he should take up my challenge to an open debate. It will give him the opportunity to respond to some of these questions and, like I said yesterday, if he can’t do it then he can get his second minister or deputy minister to do it. What’s the point of having a minister if he can’t debate?”